Legalizing Marijuana: Drugged driving and how insurers can manage risk

With the legalization of marijuana appearing more like a certainty than a possibility, legislators ought to be determining how best to address the increased societal risks associated with drug-impaired driving. While it is not possible to forecast with any certainty what legislators will do, it is reasonable to believe that they will look to perfect the system currently in place to address the challenges associated with determining whether a motorist is impaired by drugs.

Currently, the government has authorized a 12-part evaluation for drug impairment of motorists. This evaluation is to be administered by police officers with special training and certification called drug recognition experts ("DREs").¹ If the DRE had reasonable grounds to believe that the motorist is impaired by a drug upon completion of the evaluation, the DRE may require the person provide a sample of either oral fluid, urine, or a blood sample, to determine whether the person has a drug in their body. With this additional information, a determination of whether the motorist ought to be charged with drug-impaired driving can be made.

On February 23, 2017, the Supreme Court of Canada released a decision in R v. Bingley that provided guidance to lower courts on how evidence of drug-impaired driving is to be admitted.² This decision dealt with the narrow issue of whether a DRE can testify about his or her determination, without a voir dire (a special hearing) to determine the DRE's expertise.

Chief Justice McLachlin speaking for the majority of the Court determined that DREs are to be considered expert witnesses and that a voir dire is not required to admit their evidence as parliament has already established that they possess special expertise. While DREs are automatically accepted as experts for this purpose, the determination of the DRE does not determine whether a driver was driving while impaired by a drug and is merely one piece of the picture for the judge or jury to consider. A DRE's evidence does not hinder a judge's ability to critically assess a DRE's conclusion of impairment, or an accused person's right to cross-examine the DRE to undermine his or her conclusion or to cast doubt on the DRE's conclusion. The weight ultimately given to a DRE's evidence will necessarily respect the scope of the DRE's expertise and the fact that it is not conclusive of impairment.³

...the determination of the DRE... is merely one piece of the picture for the judge or jury to consider.

Further to this decision, ensuring that a motorist accused of drug-impaired driving has proper representation during the criminal proceedings has increased importance given that they likely will need to challenge the evidence of a DRE. This is of particular importance to insurers who face increased challenges of deflecting liability in subsequent tort actions when their insured has already been convicted of committing a criminal offence. Given this, we continue to recommend that insurers consider taking appropriate actions to ensure that their insureds are properly represented in the criminal proceeding (and even go so far as to retain counsel for their insured when the potential tort exposure is significant) so that they are not prejudiced in their ability to properly defend an anticipated civil action.

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¹Paragraph 9.²2017 SCC 12
³Paragraphs 31-32.

Legalizing Marijuana: Drug Recognition Experts and Drug-Impaired Driving

Additional Considerations for Insurers following Supreme Court decision

...the determination of the DRE... is merely one piece of the picture for the judge or jury to consider.